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Concept
R v Morgentaler
Summary
R v Morgentaler, [1988] 1 SCR 30 was a decision of the Supreme Court of Canada which held that the abortion provision in the Criminal Code was unconstitutional because it violated women's rights under section 7 of the Canadian Charter of Rights and Freedoms ("Charter") to security of the person. Since this ruling, there have been no criminal laws regulating abortion in Canada.
Prior to this ruling, section 251(4) of the Criminal Code, allowed for abortions to be performed solely at accredited hospitals with the proper certification of approval from the hospital's Therapeutic Abortion Committee.
Three doctors, Henry Morgentaler, Leslie Frank Smoling and Robert Scott, set up an abortion clinic in Toronto for the purpose of performing abortions on women who had not received certification from the Therapeutic Abortion Committee, as required under subsection 251(4) of the Criminal Code. By doing so, they were attempting to bring public attention to their cause, claiming a woman should have complete control over the decision on whether to have an abortion.
Morgentaler had previously challenged the abortion law at the Supreme Court in the pre-Charter case of Morgentaler v R, in which the court denied having the judicial authority to strike down the law.
The Court of Appeal for Ontario found in favour of the government. On appeal, the main issue put before the court was whether section 251 violated section 7 of the Charter. A secondary issue put to the court was whether the creation of anti-abortion law was ultra vires ("outside the power") of the federal government's authority to create law.
The court ruled 5 to 2 that the law violated section 7 and could not be saved under section 1. Morgentaler's previous acquittal was restored. There were three different opinions given by the majority, none having achieved more than two signatures. As such, aside from the unanimous finding that counsel Morris Manning's argument for the jury to nullify the verdict at trial was improper, Morgentaler is not binding precedent.
Official source
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